Ninth Circuit Upholds Contempt Order Over Arizona’s Shoddy Prisoner Care

(CN) – The Ninth Circuit refused to reverse a contempt order against the Arizona Department of Corrections for failing to improve a derelict prison health care system that caused needless pain and suffering and multiple inmate deaths.

U.S. Magistrate Judge David Duncan fined the state $1.4 million in 2018 after finding that Corizon Health, a private prison health care provider hired to improve conditions at 10 state-run prisons, did not live up to the conditions of a 2014 settlement with inmates who sued over inadequate staffing, substandard care and indifference to prisoners with severe mental health problems.

In one report, a 59-year-old inmate with liver cancer died after he retained so much fluid that his skin split open and the resulting wounds became infected. Though he had reported the untreated lesions to the nursing staff at the Yuma prison where he was incarcerated, the nurses ignored the problem.

“The inescapable conclusion is that defendants are missing the mark after four years of trying to get it right,” Duncan wrote in his contempt order from 2018. “Their repeated failed attempts, and too-late efforts, to take their obligation seriously demonstrate a half-hearted commitment that must be braced.”

Three Ninth Circuit judges affirmed Duncan’s contempt order on Wednesday, finding the judge had the authority to order the state to abide by performance measures it agreed to meet under the settlement. It also upheld Duncan’s order refusing to terminate monitoring of the state’s compliance with the settlement, and his order that the corrections department re-install health needs request boxes so inmates can request medical treatment or prescription refills and report symptoms to prison staff.

The panel included Chief U.S. Circuit Judge Sidney Thomas, a Bill Clinton appointee, and U.S. Circuit Judges J. Clifford Wallace and Consuelo M. Callahan, a George W. Bush appointee. Wallace, a Richard Nixon appointee, wrote the opinion for the panel.

U.S. District Judge Roslyn Silver took over the case after Duncan retired in 2018, and has been active in holding the Corrections Department accountable. Among other things, she appointed correctional health care consultant Dr. Marc Stern to oversee the state’s progress.

“I am totally and unreservedly devoted to this case,” Silver said, according to a report by local radio station KJZZ. “I will resolve it one way or another. I’m free, in contrast to what it’s costing taxpayers in this case.”

But the state appealed Silver’s orders as well, saying she exceeded her authority in appointing Stern. The appellate court disagreed, finding the state failed to show Silver’s orders were illogical or implausible.

Attorney Corene Kendrick of the Prison Law Office in Berkeley, California, who represents the inmates, said the Ninth Circuit’s order paves the way for Silver to continue to issue orders ensuring Arizona lives up to its promises.

While the state fought against everything Duncan ordered, Kendrick said the state’s “final hail Mary” was their argument that the settlement to which both parties stipulated in 2014 was unenforceable. Kendrick said the Ninth Circuit panel seemed unconvinced during oral arguments last September.

“It was pretty clear that the panel was not buying that argument,” Kendrick said. “The importance of the opinion from the court of appeal, besides affirming everything Judge Duncan did, really sends a signal to Judge Silver that she does have all the power that a federal court has to ensure a state agency abides by the Constitution and lives up to the promises they made five years ago.”

In October, Silver gave Arizona three options: comply with the settlement, renegotiate a new one, or go to trial. Her order came after reviewing Sterns’ report and finding the state still fell woefully short of providing prisoners with adequate health care.

“The court has spent substantial time and effort trying to get defendants to do what they agreed to do years ago. Once the court receives the parties’ positions, the court will take immediate steps to enforce defendants’ compliance with the stipulation, send the parties for settlement negotiations, or set the case for trial,” Silver said.

She had earlier threatened the state with a $50,000 fine for each unmet performance measure, but held off on levying any new penalties.

“It’s possible another contempt order can be coming down the pike,” Kendrick said. “We’ve been in a waiting pattern to see what the court of appeal is going to do, so we’re hopeful she’s going to take further steps now that the court of appeal made clear it is within the court’s power to issue enforcement orders.”

In November, Silver gave the parties 60 days to renegotiate the settlement or go to trial. In a response earlier this month, the inmates’ attorneys requested a trial, but the state would like to continue talks.

In an email, Arizona Department of Corrections spokesman Bill Lamoreaux said the department is still reviewing today’s appellate ruling.

“Improving health care delivery remains an ongoing priority for the Arizona Department of Corrections, Rehabilitation and Re-entry,” he said. “We are working with our health care contractor to meet this goal and we will continue to engage with inmates, staff, families and partners in the community. The department is committed to providing the same quality standard of healthcare to inmates that private citizens receive.”

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